We all must have ever read and enjoyed a story using our favourite characters from any book, show, or cartoon, a story that the original author did not make, publish, or approve of, yet still people read and enjoy; such a creation is called Fan fiction. To put it simply, original work by fans based on existing books, shows, any other media, etc. based on any published media is called fan fiction1. These fan fictions use the original creation of authors in aspects of characters, world-building, situations, etc., and further expand upon it using the writer's ideas, narratives, or imaginations. The internet boom2 amongst the formation of online communities further spearheaded the development of the world of fan fiction.
While fan fiction is a testament to the love of fans for the original work and is often left unchecked, it indeed lies in a very grey area of law, raising concerns about copyright infringement of the work of the original author, as the fans/authors of these fan fictions use copyrighted characters of any work/author and use them without any permission from the original author, attracting legal liabilities.
Indian Copyright Act: An Indian Legal Perspective
Copyrights in India are exclusively covered under the jurisdiction of the Indian Copyright Act, 1957 (the 'Act'). The Act, via its Section 13, covers any and all "original literary, dramatic, musical and artistic works;3" under its ambit and protection. Section 14 of the Act also gives absolute and exclusive interest and rights to the original creator of any work, as per Section 2 (d) 'author4' to adapt, reproduce, distribute, etc., their work. Any unauthorized use of the original work, including doing anything that is the exclusive right of the author, the author, leads to copyright infringement, per Section 51 of the Act.
The Act, however, allows for 'fair usage' of any copyrighted work by giving certain exceptions to the application of Section 51 on any act, such as for the usage of education institutions, private use, research, criticism, reporting, non-commercial use, etc. among many others, in the ambit of Section 52 of the Act, by application of principles of "doctrine of fair dealing5".
Status of Fan Fictions in the eyes of the law
Fan fictions are generally found in the grey area of law, i.e., it's hard to set an absolute precedent to determine whether fan fiction is in accordance with or in violation of the law. As discovered earlier, fan fiction, or any other unauthorized usage of the original work of the author, even to adapt or further delve into, stands as a copyright violation, yet this can't be said with absolute surety and is more of a subjective nature.
Fan fiction often uses pre-existing characters, designs, worlds, etc., and further uses the imagination of fans to add their versions of stories accordingly. Such use of copyrighted knowledge can be inferred as evolving or adapting the original copyrighted work, which is a copyright infringement as per Section 51(a)(i), as it can be inferred that by evolving the storyline, or adapting it, the author of the fan fiction "does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright6"
Additionally, since the inclusion of fictional characters into the realm of copyrights, as per the case of V T Thomas v. Malayala Manorama 1987 SCC OnLine Ker 1387 etc., the use of characters of the original works, without authorization, by the author of fan fictions attracts copyright infringements, per Section 51(b)(i), and if at all used for trade displays, sale, profits8, etc.
To determine whether or not fan fictions commit copyright infringements, it is imperative to make sure that these fan fictions are or are not exempted by Section 52 of the Act, which talks about exceptions to infringements, or "Certain acts not to be infringement of copyright9" of copyrights. The Hon'ble High Court of Delhi, in India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd. 2012 SCC OnLine Del 429810 explored the same and gave certain determinants to "fair use" as:
1. Purpose of the Use: Fan fictions are often done out of love for the original work, and without any commercial purposes, such personal enjoyment or even community sharing aligns itself very well with the exceptions under Section 52 of fair dealing for private use and non-commercial purposes. However, as said before, if at all the purpose of making fan fiction is monetized or commercial, i.e., for sale, trade, profits, trade displays, displays, distribution for trade, or trade exhibits in public, they won't be protected under this exception clause, and will attract full legal liability of infringing copyright as per Section 51(b) of the Act.
2. Nature of Copyrighted Work: Fan fictions generally expand upon or dive deep into the pre-existing fictional literature as opposed to the factual one, which is heavily protected under the copyright act. If the author of such fan fiction includes new characters, storylines, narratives, interpretations, etc., the same can be attributed as "transformative work" and is included in the exceptions of fair dealing, as per Super Cassette Industries Ltd. v. Hamar Television Network Pvt. Ltd. ILR (2010) 6 Del 230.11
3. The amount and substantiality of the portion used in relation to copyrighted work as a whole: Fan fiction, more often than not, borrows noteworthy elements from the original work, such as characters, settings, etc., as discussed previously. In the same regard, the aspect of the value of the quality of the original work used far outweighs the quantity, as usage of the central story or character, even if borrowed in a small element, often weighs against fair dealing, as compared to taking huge bits and pieces of multiple elements. Further, as per R.G. Anand v. Delux Films 1978 SCC OnLine SC 195,12 the Hon'ble court held that in the absence of pirating of work and reproduction of the said work "verbatim/completely," any actions cannot amount to copyright infringement.
4. The effect of the use upon the potential market or value of the copyrighted work: Unless fan fiction harms the potential market or value of the copyrighted work, it cannot be given the protection of Section 52 per se. The harming of the potential market can be understood as any action that affects/decreases the market(profits) of the original work. If any fan fiction competes with the original work or its derivatives (sequels, spin-offs, etc.), it is generally understood to harm the market value; further commercialization of the same makes the claims of infringement even stronger. The High Court of Delhi in 2019 in Syndicate of the Press of the University of Cambridge and Another v. B.D. Bhandari and Another (2005) 31 PTC 5813, held that unless any work affects the original work's market, it cannot be classified as copyright infringement.
Fan fiction often inhabits itself in a very complex and ambiguous space within the application of copyright laws, particularly the Indian Copyright Act, 1957. Though such works prove to be creative expressions and love of the fandom for the original work of the author, they further raise several legal concerns regarding the rights of the original creator, i.e., the author, and thus attract copyright infringements.
Justice Patel, in XYZ Films LLC and Others v. UTV Motion Pictures/UTV Software Communications Ltd. and Another (2016) 67 PTC 8114, additionally said, "In general, there is no copyright in the central idea or theme of a story or play; however, original it may be; copyright subsists in the combination of situations, events, and scenes which constitute the particular working out or expression of the idea or theme. If these are totally different, the taking of the idea or theme does not constitute an infringement of copyright."
Ultimately, the legality of fan fiction remains to be decided heavily on a case-by-case basis and depends majorly on factors such as purpose, nature, amount used, and effect of market, as discussed earlier. With the rise of online communities and further digitalization of the original works, a thriving fan fiction culture finds itself growing more and more, further enticing and embedding the undeniable need for much clearer legal guidelines to balance the rights of the original creators with the evolving landscape of fan creativity and expression.
Footnotes
1. Megan Friess, Fanfiction As: Searching for Significance in the Academic Realm, 45 J. Copyright Soc'y 123 (1998).
2. Conor Tucker, The DTSA's Federalism Problem: Federal Court Jurisdiction over Trade Secrets, 28 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1 (Fall 2017).
3. The Copyright Act, 1957, § 13, No. 14, Acts of Parliament, 1957 (India).
4. The Copyright Act, 1957, § 2(d), No. 14, Acts of Parliament, 1957 (India).
5. Sufiya Ahmed, Fair Dealing in Indian Copyright Law, 26 J. Intell. Prop. Rts. 96 (2021).
6. The Copyright Act, 1957, § 51(a)(i), No. 14, Acts of Parliament, 1957 (India).
7. V T Thomas v. Malayala Manorama 1987 SCC OnLine Ker 138
8. The Copyright Act, 1957, § 51(b)(i), No. 14, Acts of Parliament, 1957 (India).
9. The Copyright Act, 1957, § 52, No. 14, Acts of Parliament, 1957 (India).
10. India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd. 2012 SCC OnLine Del 4298
11. Super Cassette Industries Ltd. v. Hamar Television Network Pvt. Ltd. ILR (2010) 6 Del 230
12. R.G. Anand v. Delux Films 1978 SCC OnLine SC 195
13. Syndicate of the Press of the University of Cambridge and Another v. B.D. Bhandari and Another (2005) 31 PTC 58
14. XYZ Films LLC and Others v. UTV Motion Pictures/UTV Software Communications Ltd. and Another (2016) 67 PTC 81,
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
